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Chapter 4: The Appointment of the Soulbury Commission

Until the files of the Colonial Office are made available to scholars the reasons for the appointment of the Soulbury Commission will remain obscure.[1]I felt very strongly on the subject, perhaps too strongly. Mr Senanayake and through him the Ministers had acted on advice given by me which appeared, in July 1944, to be based on false premises. When the documents were examined afresh, however, it seemed that the only premise which might be false was the good faith of His Majesty’s Government. Those in Ceylon who never accepted this premise, and they were very numerous because nobody in India had accepted it, were thus able to triumph; and this appeared to me to be a more serious matter than the appointment of a commission. It is essential to remember, however, that I can give only one side of the story. The only contribution on the other side is a casual remark made by Colonel Oliver Stanley, after he had ceased to be Secretary of State, that the affair had been very badly handled. It is necessary to emphasise again that the Ministers had no information of the intentions of His Majesty’s Government other than the curiously phrased Declaration of May 1943 and such scraps of information as came from casual conversations, with the Crown representatives in Ceylon. It was however a favourite game of Sir Oliver Goonetilleke’s to chew over such morsels of information as we had in order that we might discover what were the motives which inspired the decisions. This game, which was played at A.R.P. Headquarters in the watches of the night, may on this occasion have led us astray.

It was obvious that the Declaration of May 1943 was intended primarily to keep the Ministers quiet for the duration of the war and to secure their assistance towards the building of a base for winning the war against Japan. We knew that the representations made by Sir Andrew Caldecott, the Governor, were being supported by Sir Geoffrey Layton, the Commander–in–Chief. Even so we did not believe, as so many in Ceylon believed, that the whole thing was a hoax and that the undertaking of May 1943, whatever it was, would be repudiated as soon as the aim had been achieved. On the contrary, we thought that the scheme of the Declaration had been cleverly designed – and we gave Sir Andrew Caldecott and Sir Robert Drayton full marks – for producing a satisfactory solution to the constitutional problem. It was no longer possible to have a Constitution designed by a commission, because it would clearly be repudiated by the Ministers and the State Council. It was not possible to secure an agreed Constitution, because this would place an absolute veto in the hands of the minority leaders. In India the desire for agreement between the Congress and the Muslim League enabled the League to put up its price until in the end India was divided. In Ceylon too an agreed scheme would not be a compromise but an acceptance of Ponnambalam’s scheme of “balanced representation”. In Ceylon, however, there was an executive and a legislature in being. If the Ministers were to get 43 votes in a legislature of 58 they had to devise a scheme which went a considerable way to placate minority opinion. Mr Ponnambalam would not get “fifty–fifty”, but the Tamils, the Muslims and the Indians would not get “Sinhalese domination”. We knew– and we thought that Sir Andrew Caldecott and Sir Geoffrey Layton knew – that Mr Senanayake was not a communal politician but a patriotic Ceylonese anxious to put an end to communalism and to create a system of government in which all patriotic Ceylonese could combine. If in fact he did secure approval in London of a Constitution which considerably enlarged the scope of self–government, and if the constitutional arrangements were not unfair to the minorities, he would certainly obtain 43 votes or even more: and here we may anticipate events by pointing out that in November 1945 he obtained a vote of 51 in a Council of 54.

Towards the end of 1943 we were compelled to modify our picture somewhat. During one of his frequent walks with me Sir Robert Drayton took occasion to emphasise the need for an attempt by the Ministers to secure agreement with Mr Ponnambalam and his Tamil followers. He put his case, however, on the somewhat curious ground that if the scheme broke down it was necessary to show that the extreme demands of the Tamils were the cause. It was evident that these remarks were intended to be passed to Mr Senanayake and they were so passed: but we found it difficult to grasp the implications. The scheme as we saw it compelled the Ministers to produce a draft Constitution which was so intrinsically fair that it would secure at least 43 votes in the State Council. Mr Senanayake would have been glad to agree if Mr Ponnambalam would compromise; he raised no objection to an attempt by Mr Bandaranaike to secure agreement; he gave every support when Mr Mahadeva tried to get his own people to agree on a formula; but he did not believe that Mr Ponnambalam could compromise. On the contrary he feared that if negotiations were conducted on the basis of the Ministers’ draft not only Mr Ponnambalam but also the other Tamil members would pledge themselves against it, whereas if after agreement with the Colonial Office they were faced with a choice between the Donoughmore Constitution and the Ministers’ draft they would choose the latter. In any event, the time to put the Tamils in the wrong, if unfortunately that had to happen, was when the Ministers’ draft was laid before the State Council.

Our second conclusion was therefore that Sir Robert Drayton had invented the idea of the Declaration in the hope that it would produce an agreed scheme. What is more, it soon appeared that he had a scheme, or at least an outline of a scheme, of his own in which a second chamber played a fundamentally important part. At one point he went so far as to declare in writing that a second chamber was essential and that the Ministers’ scheme as drafted would never come into operation. Finally Sir Andrew Caldecott, in his reply to Mr Senanayake’s letter of the 2nd February 1944, claimed that the Ministers had not produced a “complete constitutional scheme” because such crucial questions as to the form of the legislature, the franchise and representation were left for consideration otherwise than by the commission or conference.

The Ministers did not pay much attention, to criticisms from Mumtaz Mahal, Queen’s House and Temple Trees[2] because by now they were satisfied of the good faith of the Secretary of State and believed that they were carrying out the Declaration of May 1943 in the letter and in the spirit. Mr Senanayake early in the discussion had said that for the first time in his life he was on the side of “the Governor’s Government”. His first memorandum to the Board of Ministers had been declared by the Chief Secretary to be “quite fair”. The Ministers’ interpretation of June 8 had been drafted in collaboration with the Chief Secretary, and had been seen by the Governor. The Secretary of State had said that he had not found anything “essentially irreconcilable” with the Declaration in that document. The Ministers had carried out the procedure there laid down by formulating “detailed proposals…in the way of a complete constitutional scheme”. They were ready to submit the scheme to a “commission or conference” in order to show that conditions (2) to (6) of the Declaration were satisfied. When the commission or conference had agreed on this point they were prepared to submit the draft to the Senate Council and secure at least 43 votes for it. There were only two qualifications on the Declaration. First, they proposed to submit the representation clauses separately and to be ready with an alternative motion if they did not get 43 votes. Secondly, they asked for immediate consideration instead of when victory was achieved. They had however given notice of such qualifications in their interpretation of June 8, 1943.

On the 16th November Mr Ponnambalam asked a series of questions in the State Council with the aim of securing an assurance that the Ministers’ draft would be brought before the State Council before it was sent to the Secretary of State. Mr Senanayake in his reply made it plain that the draft would not be produced before it had been approved by the Secretary of State; and he justified this procedure by saying that this was the obligation which the Ministers had undertaken under the Declaration. A “finished product” and not an “unfinished product” would be put to the Council. Thus Mr Senanayake merely repeated what the Ministers understood to be the procedure laid down for them.

Mr Ponnambalam and the other minority leaders were obviously afraid that the Sinhalese Ministers were concocting an instrument for “Sinhalese domination” but they never contended that the procedure was contrary to the Declaration. What is more, the Secretary of State seemed to agree with the Ministers. On the 3rd November a person who is described in the published documents as “Mr X” sent a protest to the Secretary of State[3]. In reply the Secretary of State merely said[4]that the detailed proposals formulated by the Ministers would in due course be examined by a suitable commission or conference, and that he could not anticipate such examination. On the 4th December the Governor forwarded correspondence with the Ceylon Indian Congress which showed that the Secretary of State replied[5] that one of the conditions of acceptance of the Ministers’ scheme was that it should eventually be accepted by three–quarters of all the members of the State Council, and that he was not prepared to interfere with their discretion. Both replies accorded with the Ministers’ interpretation. They would submit draft proposals which would be examined by a commission or conference to see that conditions (2) to (6) were complied with. Then the proposals would be put to the State Council and would require a 75 per cent majority.

When the Ministers asked on the 7th December for conferences with the minority members, most of the latter asked for copies of the Ministers’ draft. As I have mentioned, the draft did not at this stage contain anything which would have interested them, but Mr Senanayake’s reply merely stated that the Ministers would follow the procedure laid down in the Declaration, On the 17th January 1944 Mr Ponnambalam and other members asked for a Round Table Conference to consider the draft and on the 31st January Mr Senanayake again refused. On the 15th February Mr Ponnambalam and other minority members sent a telegram to the Secretary of State through the Governor asking[6] that consideration of the draft be postponed until it had been submitted to the State Council. This time the Secretary of State combined the replies to Mr X and the Ceylon Indian Congress and said[7] that acceptance of the Ministers’ scheme was conditional on the scheme being examined by a suitable commission or conference and being eventually accepted by three–quarters of all the members of the State Council; and that he could not interfere with the procedure adopted by the Ministers. Once more this accorded with the Ministers’ interpretation, and the only odd circumstance was that the Governor kept the reply until he had called the Ministers together and read the telegram and the reply. As we shall see presently, the oddity was due to the fact that the Governor gave the reply a very different interpretation. The Ministers had no idea why he had taken up their time with such correspondence.

Mr Ponnambalam understood the reply in the same sense as the Ministers. On the 4th April he wrote to the Governor[8] enclosing a resolution by the minority members protesting strongly against the appointment of a commission or conference to consider only the Ministers’ scheme and saying that this was contrary to the spirit of the Secretary of State’s earlier declarations. Sir Andrew Caldecott artlessly (or perhaps artfully) replied[9] asking for elucidation, because he could not find anything in the telegram inconsonant with the letter or the spirit of the earlier declarations and requesting information about the insertion of only Mr Ponnambalam giving the necessary elucidation, Sir Andrew replied:[10]

I have been unable to discover anything in the Declaration…or in the message from the Secretary of State…which would justify an inference that the promised examination by a suitable commission or conference of the Ministers’ constitutional scheme will be without consideration of the position generally or without opportunity being afforded for examination of the conflicting views of the various interests concerned.

Had the Ministers known anything of this correspondence, they would at once have pointed out that, even if the Declaration itself was obscure, this reading was inconsistent with their interpretation of June 8, 1943. This interpretation was based on the memorandum of May 30, which the Chief Secretary had read and had pronounced to be a fair interpretation and which had been discussed in the Board of Ministers when the Chief Secretary, the Legal Secretary and the Financial Secretary were present. The Ministers’ interpretation had been approved by the Chief Secretary before it was circulated, was discussed in the Board of Ministers with the same Officers of State present, had been amended by the Chief Secretary, and had been forwarded by the Governor to the Secretary of State. The Secretary of State had not been able to find in it anything “essentially irreconcilable” with the Declaration. Yet the Governor, who was presumably advised by the Chief Secretary and the Legal Secretary, was now, nine months later, unable to find in the Declaration anything which denied the exact converse of the Ministers’ interpretation.

Actually the Ministers did not know anything about this correspondence. This time the Governor did not send for them and read it to them. Nor did he follow the usual practice and send copies to Mr Senanayake for information. Had that happened there would have been an explosion in A.R.P. Headquarters, for the chemical composition of the Minister of Agriculture and Lands[11]was known to be unstable in such conditions. What happened was that one copy of the correspondence was placed in a folder with eighteen other documents dealing with such high matters of State as the departure of Mr Y from Liverpool on his return from leave. This folder started its round on the 2nd May 1944, and was initialled by all the Officers of State and the Ministers, the last of them, Colonel Kotelawala, initialling it on the 30th June. Mr Senanayake had it on his table for three weeks – a fact which was given high political significance in at least one quarter. The only person who attached importance to the folder was apparently the Chief Secretary, who not only initialled it on the 6th May but also sent for it again (while it was lying unopened on the table of one of the Ministers) about three weeks later. The correspondence was actually read by one of the Ministers, who thought it “fishy”, but since it was six weeks old and was in the Leader’s province he thought that Mr Senanayake must have secured a satisfactory explanation. It must be confessed that the other Ministers initialled the fold without reading its contents. There was nothing unusual in this, for documents were normally sent to the responsible Ministers “f.e.a” (for early action) or “f.i.” (for information) and were circulated in folders in addition only to keep the other Ministers informed. They could thus assume that they had already seen all documents which concerned them directly. Mr Senanayake himself admitted that he must have initialled the folder without opening it, for he first learned of this correspondence on the 1st August, 1944, when the above facts were ascertained and Sir Oliver Goonetilleke and I were sent for hurriedly to hear the confession.

While this curious procedure was being followed the Ministers were anxiously awaiting news of their request for immediate consideration of their scheme. On the 16th June the Governor sent for Mr Senanayake and informed him that His Majesty’s Government had decided to accede to the request by the appointment of a commission which would visit Ceylon at the end of 1944. This step did not involve any qualification of the conditions set out in the Declaration of May 1943. The precise wording of the statement would require time to compose, but the Secretary of State had authorised the Governor to inform Mr Senanayake and through him his colleagues. The statement was confirmed by letter the same evening[12] and the Ministers were naturally elated. As they understood the position, the commission would discuss with them the provisions of their draft and would report to the Secretary of State. If he agreed that the Declaration of 1943 had been satisfied, the Ministers would lay the draft before the State Council and the Ministers felt certain that they could get 43 votes.

On the morning of the 5th July a copy of the promised statement was sent by hand to Mr Senanayake. It followed the general lines of the Governor’s letter of 16th June but contained one additional sentence:

It is the intention of His Majesty’s Government that appointment of Commission should provide full opportunity for consultation to take place with various interests including minority communities concerned with the subject of constitutional reform in Ceylon and with proposals which Ministers have formulated.[13]

It took the Colonial Office 19 days to draft that sentence, though it was not very different from the sentence written by Sir Andrew Caldecott to Mr Ponnambalam on the 20th April:

I have been unable to discover anything…which would justify an inference that the promised examination by a suitable commission…will be without consideration of the position generally or without opportunity being afforded for examination of the conflicting views of the various interests concerned.

When Mr Senanayake read the statement the expected explosion took place (though not in A.R.P. Headquarters). He at once asked for an interview, lodged a personal and emphatic protest against the wording of the announcement and requested that publication be deferred. Sir Andrew replied that he would forward any representation made by Mr Senanayake or the Ministers but that the announcement, which was to be made in the House of Commons that afternoon, could not be delayed. The announcement was made accordingly.

I was requested to draft a reply and Mr Senanayake’s secretary to prepare a memorandum incorporating the documents. The latter, it need hardly be said, contained no reference to the correspondence of April with Mr Ponnambalam, nor did I know anything about it. My draft was somewhat emphatic and was toned down by the Ministers, who apparently thought (as I did not) that the Secretary of State might be persuaded to resile. The draft as approved[14]stated the case and ended with the assertion that the Ministers would decline to take any part in the deliberations of the proposed commission.

Before a reply was received somebody (I think the Chief Secretary) produced the ace of trumps, the correspondence of April with Mr Ponnambalam. It then became clear that the reference to “various interests” was not a sudden aberration but a carefully matured plan; the Ministers came to the conclusion that the cause was lost and that they must start the whole process of agitation for constitutional reform again in an atmosphere embittered by the controversies which the commission would arouse. The reply of 6th August[15] was a clever answer but it naturally did not touch the main point, that the Ministers gave a clear interpretation in June 1943, acted on it consistently, and were told in July 1944 that they had misunderstood the whole procedure.

This reply also gave the Ministers for the first time the information that the conference on the 14th March, at which Mr Ponnambalam’s telegram and the reply were read by the Governor, had some significance. The Governor apparently explained that the correspondence “could only mean that the minorities need not be apprehensive because the contents of the Ministers’ scheme would be examined by a commission or conference which would ascertain their views and that any Constitution that might emerge…would still require acceptance by 75% of the State Council”. The clause now italicised was ambiguous, but it would certainly have impressed itself on the minds of the Ministers had it been emphasised. It is in any event extremely difficult to understand why a Constitution should require a 75 per cent vote if it was to be produced by a commission. The majority for the Donoughmore Constitution was two votes.

The Ministers’ battle was evidently lost. A complete survey of the documents was made in case the Ministers wanted it to go as an appendix to their reply, but they decided that it was not worth the bother. A comparatively short reply was made, notifying that the Ministers withdrew their scheme. In September a request was made in the State Council for the Ministers’ scheme to be published. The Ministers agreeing, it was published with an explanatory memorandum in the document which the Soulbury Commission called “Sessional Paper XIV of 1944”. The Ministers were no longer interested in it.

To explain these decisions, it is necessary to recreate the atmosphere of August 1944. The body of opinion which had reluctantly accepted the Declaration of May 1943 naturally said: “we told you so”. The Declaration had kept the people of Ceylon quiet for twelve vital months. The war had taken a turn for the better, but it was still necessary to beat the Japanese. A commission was to be appointed to keep things going for another twelve months, during which communal antagonism would rise and would provide an excuse for doing nothing, or perhaps nothing much. The British would never relax their control over the Island and never intended to do so. They had expected that the Ministers would squabble among themselves for a couple of years. Instead they had produced a draft in six months and there was a possibility that they would get a 75 per cent majority. This was the moment for the old game of “divide and rule”. His Majesty’s Government therefore proposed to send out a commission and, of course, every little group, communal, caste and religious, would start attacking every other little group, with the result that the commission would recommend that the British Government continue to accept responsibility for the management of these quarrelsome people.

A second and more instructed section of opinion put the blame on Sir Robert Drayton. He had worked out for himself the sort of the Constitution he considered desirable and he thought he could get the Ministers to accept it. He had therefore collaborated with them until he found them producing a Constitution quite unlike that which he had anticipated. In the hope of getting them to agree he warned them in writing that “their Constitution would never come in to operation”. When they persisted, he proved the truth of his forecast. First, he drafted a reply for the Governor in which it was complained that the Ministers’ draft was not a “complete constitutional scheme”. Later he found a more fruitful line of attack through the protests of the minority members. The “commission or conference” should be a commission. It would consider not only the Ministers’ drafts but any other proposals. It would then produce a Constitution and the Secretary of State could declare magnanimously that after all a bare majority was enough. He had to play a careful game, however, because he dare not antagonise the Ministers and obstruct the war effort. In reply to Mr Ponnambalam’s first protest he had drafted a reply which emphasised the “commission or conference”. Sir Andrew Caldecott had summoned the Ministers and emphasised the point, suggesting somewhat obscurely that the minorities could state their case to the “commission or conference”. There being no reaction. Sir Andrew on Sir Robert’s advice had gone further in April and had given a categorical assurance to Mr Ponnambalam. The correspondence was circulated in the queitest manner possible, as though there was nothing of any importance to it. After three weeks the Chief Secretary sent for the folder and found that the Ministers were taking it without protest. The Governor then advised the Secretary of State to include the obnoxious sentence but took care not to inform Mr Senanayake until it was too late to stop the procedure.

Another interpretation is possible. I am prepared to deny flatly the whole theory of “divide and rule”. What the Colonial Office had upheld is the tradition that it was trustee on behalf of His Majesty, for all sections of his people. This was shown, for instance, by the great care with which all petitions were studied whether they were written by semi–imbeciles, by people whose minds have been turned by real or imagined grievances, or by anybody else. When the minority members asserted that the procedure of Ministers had “aroused strong misgivings and resentment among minority communities”[16] the assertion could not be ignored: it was the duty of the Colonial Office to enquire into the matter. If we ask what the Colonial Office meant by the Declaration of May 1943, the correct answer is probably that it knew little more than we did. The Colonial Office is not a person but an institution: probably a dozen persons had a hand in drafting that document. It cannot be denied and so far as I know nobody has denied – that the procedure actually followed was contrary to the Ministers’ interpretation. But if it was at all possible to meet the views of the minorities without antagonising the Ministers it should certainly be done. After consulting Sir Andrew Caldecott, who was no doubt impressed by the fact that the Ministers had not raised objections to his talk on 14th March on to the correspondence circulated in the folder, the Colonial Office decided to take the risk. Actually, it had been badly advised, though in all good faith, with the result that the Ministers decided not to assist the Commission and withdrew their scheme. His Majesty’s Government could not withdraw with dignity however, and Sir Robert Drayton was set the difficult task of justifying a procedure which could not in fact be justified. He did it very cleverly, and I congratulate him on it, for it could not have been a pleasant duty.